American ISPs to launch massive copyright spying scheme on July 12

If you download potentially copyrighted software, videos or music, your Internet service provider (ISP) has been watching, and they’re coming for you.

Specifically, they’re coming for you on Thursday, July 12.

That’s the date when the nation’s largest ISPs will all voluntarily implement a new anti-piracy plan that will engage network operators in the largest digital spying scheme in history, and see some users’ bandwidth completely cut off until they sign an agreement saying they will not download copyrighted materials.

Word of the start date has been largely kept secret since ISPs announced their plans last June. The deal was brokered by the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), and coordinated by the Obama Administration. The same groups have weighed in heavily on controversial Internet policies around the world, with similar facilitation by the Obama’s Administration’s State Department.

The July 12 date was revealed by the RIAA’s CEO and top lobbyist, Cary Sherman, during a publishers’ conference on Wednesday in New York, according to technology publication CNet.

The content industries calls this scheme a “graduated response” plan, which will see Time Warner Cable, Cablevision, Comcast, Verizon, AT&T and others spying on users’ Internet activities and watching for potential copyright infringement. Users who are “caught” infringing on a creator’s protected work can then be interrupted with a notice that piracy is forbidden by law and carries penalties of up to $150,000 per infringement, requiring the user to click through saying they understand the consequences before bandwidth is restored, and they could still be subject to copyright infringement lawsuits.

Participating ISPs have a range of options for dealing with customers who continue to pirate media, at that point: They can require that an alleged repeat offender undergo an educational course before their service is restored. They can utilize multiple warnings, restrict access to only certain major websites like Google, Facebook or a list of the top 200 sites going, reduce someone’s bandwidth to practically nothing and even share information on repeat offenders with competing ISPs, effectively creating a sort of Internet blacklist — although publicly, none of the network operators have agreed to “terminate” a customer’s service.

It is because of those reasons that the content industries believe this program achieves much more than what might have been possible in the realm of public policy, and the ISPs appear to agree. The voluntary scheme will be paid for mostly by the content industries, which will share some costs with the ISPs.

Not everyone sees it as a positive: The Electronic Frontier Foundation, a digital rights advocacy group, argued that the “graduated response” scheme lacks transparency, and that copyright holders could wield the network operators like a blunt instrument in cases where their claims may not be entirely valid — which is the biggest problem with statutes codified by the Digital Millennium Copyright Act.

They also pressed for assurances that claim reviews will be conducted by a neutral party, and suggested that users should be given some form of due process before their bandwidth is turned down or cut off entirely.

The EFF also took issue with the system of protest the program puts in place, which only gives users six predetermined “defenses” against a copyright claim. “And even the six enumerated defenses are incomplete,” they complained. “For example, the ‘public domain’ defense applies only if the work was created before 1923 — even though works created after 1923 can enter the public domain in a variety of ways.”

A legislative effort that would have achieved some, but not all, of these ends was utterly destroyed by the Internet’s first ever mass work stoppage late last year, which saw thousands of popular websites go dark in protest. (Disclosure: The Raw Story participated in that protest.)

It’s not yet clear how the tech world will react to the ISPs siding with the content industries to do what the government simply could not.

Author: Reynold MasonReynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.